Jeffrey Toobin has a short profile of Austin Nimocks, an attorney with the Alliance Defending Freedom who has been representing some states defending their bans on same-sex marriage and filing briefs in other cases. Toobin points out that he’s making a rather glaring strategic mistake:
The heart of Nimocks’s argument comes down to a single word: children. Over and over again in his sixty-page brief, he asserts that the government has a legitimate interest in favoring traditional marriage because only a man and a woman can produce children. “Marriage laws have been, and continue to be, about the pragmatic business of serving society’s child-centered purposes, like connecting children to their mother and father, and avoiding the negative outcomes often experienced by children raised outside a stable family unit led by their biological parents,” he writes. He attempts to elide the obvious response—that not all opposite-sex couples want or can have children—by saying that Virginia can presume that they will. The purpose of limiting marriage to men and women “is not to ensure that all marital unions produce children. Instead, it is to channel the presumptive procreative potential of man-woman relationships into enduring marital unions so that if any children are born, they are more likely to be raised in stable family units by both their mothers and fathers.” This, then, is Nimocks’s best response to the argument (raised by Justice Elena Kagan at the oral arguments) that marriage is about more than just having children, because lots of married people can’t or don’t have them.
There is a potentially fatal flaw in Nimocks’s child-centered argument. At the oral arguments of the Windsor case, and in the Court’s opinion, one of the Justices also seemed especially interested in children. It was Justice Kennedy, the indispensable swing vote on issues of gay rights. “There are some forty-thousand children in California that live with same-sex parents, and they want their parents to have full recognition and full status,” Kennedy said during the arguments related to Windsor’s companion case, on California’s Proposition 8. “The voice of those children is important in this case, don’t you think?” In his opinion in Windsor, Kennedy wrote that the Defense of Marriage Act “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” The laws that Nimocks is defending operate in much the same way—which means that his losing streak may not end when he reaches the Supreme Court.
Indeed, the most fascinating aspect of Kennedy’s ruling in Windsor was how much he focused on the protection for children that same-sex marriage provides. He notes that the Defense of Marriage Act:
humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…
DOMA also brings financial harm to children of samesex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.
This strategy is going to backfire. And that’s a good thing.